Vaccines – A Parents Right to Decide?
According to NHS England, “Vaccination is the most important thing we can do to protect ourselves and our children against ill health. They prevent up to 3 million deaths worldwide every year.” The NHS Website points out that vaccinations are designed to protect against lethal illnesses, which have become less common as a result, and warns, “If people stop having vaccines, it’s possible for infectious diseases to quickly spread again.” Despite this clear advice, some people have very strong views about vaccination. The roll out of the Covid vaccine, and the administration of that vaccine to children, has added to the debate. We have a word, ‘anti-vaxxer’ for someone who opposes the use of some or all vaccines, or regulations mandating their use.
Despite government advice and social pressure, some parents are reluctant to give certain vaccines to their children; others choose not to vaccinate their child at all. They think their decision is final, but are they right?
Parental Responsibility & Specific Issues Orders
When the Children Act 1989 came into force, it introduced the concept of ‘parental responsibility’ or ‘PR’. Most (but not all) parents have PR for their children, whether or not that child lives with them. Few parents understand what PR is or why it is important. It is defined in the Children Act 1989 as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”. Not the easiest definition, but it includes the responsibility to make key decisions for a child – including decisions around education and medical treatment. Normally, parents agree and they make decisions together. We expect parents to try their best to reach sensible agreements. If they agree not to vaccinate their child, that is generally the end of the matter.
However, unsurprisingly, where parents are separated they often disagree and those disagreements sometimes extend to arguments over key parenting decisions: which school a child should go to, whether they should have medical treatment etc. Arguments over whether or not a child should be vaccinated are not uncommon. How does the law resolve arguments between parents who may both have a valid point of view?
Where parents cannot agree, they can go to court and ask a Judge to decide for them. It should be a last resort where diplomacy and mediation have failed. The court works on the basis that the interests of the child are paramount, taking precedence over the wishes of the parents, and will apply a list of factors known as the welfare checklist. That checklist requires the court to consider the wishes and feelings of the child, the child’s needs and a host of other factors. Some parents will be familiar with the idea of a child arrangements order where the Judge sets out where the child will live and who it will have contact with. There is a presumption in the Children Act 1989 that it is in the best interests of a child to have a relationship with both of its parents and it is relatively common for children to have homes with both parents. Child Arrangements Orders regulate the day-to-day arrangements for a child; but the Court’s powers do not stop there. The Court can make other orders where parents cannot agree how to use their Parental Responsibility. A Judge may make a specific issues order to decide a particular question, or a prohibited steps order to stop a parent from doing something that their PR would normally entitle them to do. This means that a parent can apply for an order to vaccinate their child, or an order to stop a vaccination taking place, something which increased in prevalence recently with the outbreak of coronavirus and the subsequent vaccine rollout.
Does a parent have a right of veto? No. Where arguments over vaccination come to court, the Judge will listen to what the parents have to say but they will almost certainly follow current medical advice. In other words, the court is likely to decide that vaccinations are in a child’s best interests unless there is medical evidence to the contrary. The court has no interest in what Sedley LJ once described as ‘junk science’. What about vaccines not currently included in the NHS routine immunisation schedule? It seems that similar rules apply; in Re Permission to Arrange Covid-19 Vaccination [2022] EWFC 112, the Family Court concluded that a mother’s opposition to the Covid-19 vaccine was “quite simply a hopeless case”. An order was made for two healthy children aged between 8 and 10 to be given the vaccine.
Children in Care
When children are in care, the Local Authority shares PR with their parents. Again, there is room for disagreement in relation to key decisions. In Re H (A Child) (Parental Responsibility: Vaccination) [2020] EWCA 664 the Court of Appeal set about a detailed review of the law, concluding “Although vaccinations are not compulsory, the scientific evidence now clearly establishes that it is in the best medical interests of children to be vaccinated in accordance with Public Health England’s guidance unless there is a specific contra-indication in an individual case”. The legal position is the same for looked after children as it is for children living at home.
Adults in Care?
There have been cases where the court has decided that vulnerable adults should have the Covid vaccine. Those of us who have capacity can make our own decisions, whether they are wise or unwise; but where an adult lacks capacity, decisions have to be made for them in their best interests. The Court has ordered the vaccination of vulnerable young adults despite family objections and in North Yorkshire CCG v E (by his litigation friend, the official solicitor) [2022] All ER 124 the Judge ordered that a 65 year old should receive the Covid vaccine, when his learning disabilities may have been caused by the whooping cough vaccine he received as a child, showing that even in exceptional cases the general medical advise that Vaccines are in the best interest of public health can be decisive.